ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006367
Parties:
| Complainant | Respondent |
Parties | A Warehouse Operative | A Distribution Company |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00008594-001 | 05/12/2016 |
Date of Adjudication Hearing: 27/09/2017
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
This case (Adj 6367) concerns an alleged Dismissal by a Freight Handling & Distribution Company of a contracted employee of an Employment Agency. A claim of Redundancy (Adj 6288) is made by the Complainant against the Employment Agency. Both claims were heard consecutively at the Oral hearing. |
1: Summary of Complainant’s Case:
The Complainant alleged that he was unfairly Dismissed due to a flawed and procedurally unfair process carried out by the Distribution Centre Owners/Mangers. All proper evidence was not considered and what evidence was presented did not prove, to any conclusive degree, the facts of the case alleged against him – that of an assault on a fellow employee. |
2: Summary of Respondent’s Case:
The dismissal was not disputed. It arose out of a violent exchange between the Complainant and a fellow employee. Section 6(5) (b) of the Unfair Dismissals Act, 1977 allows for a dismissal on the grounds of “the conduct of the employee. Good and well documented policies were followed and all the elements of SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures were followed to the letter. A full investigation took place which was followed by a Disciplinary Process which culminated in an Appeal. At all stages proper correspondence and notifications were issued and the right to examine all evidence and to have representation was provided. Copies of all documentation ,witness statements and meeting minutes were presented in evidence In their legal submission reliance was palced on Looney & Co. Ltd v Looney,UD 843/184 where guidance was given by the EAT regarding the role of the Tribunal or latterly an Adjudication Officer in cases where a full and proper investigation has taken place and the dismissal decision has to be seen in the light of the “reasonable employer” – in other words the principle of the EAT not upending a decision but rather of considering it in the context of the “Band of Reasonableness” for similar employers . Trust between the Complainant and the Employer had been fundamentally breached and the dismissal decision was reasonable and appropriate in the circumstances.
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3: Findings and Conclusions:
3:1 The Law – Jurisdiction to Hear case. I noted Section 13 of the Unfair Dismissals (Amendment) Act,1993
3:2 The Law. – Natural Justice In an Unfair Dismissal situation the guiding principle has to be that of Natural Justice. In Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct: “1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion. The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment. The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee. Put very simply, principles of natural justice must be unequivocally applied.” More recently SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures has codified this Natural Justice principle into a set of guidelines. 3:3 The Role of the Adjudicator There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for the Employer and to, effectively, engage in a de facto rerunning of a Disciplinary case. The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445 “It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mummery LJ stated in Foley v The Post Office at page 1295 : “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.” The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated upon at length. Accordingly in the case in hand the key question is whether of not natural justice was followed in all procedural matters and the ultimate decision to dismiss was in the “band of Reasonableness”. 3:4 Review of the Evidence both written and Oral. Extensive written evidence was presented by the Respondent and supported by considerable witness evidence from relevant Managers at the Oral hearing. On balance I found the Respondent witness evidence to be professional and credible. Full cross examination of the Respondent evidence and witnesses took place by the Complainant’s legal representative. Likewise the oral evidence of the Complainant was examined by the Respondent's representative. Having listened to all the oral evidence and carefully read all the documentation, photographic evidence and extensive employment procedures I came to the view that a full and fair process had been followed up to and including the final Appeals stage. I could find no faults under the Natural Justice or SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures headings. 3:5 The Dismissal Decision and the “Band of Reasonableness”. Regarding the decision to dismiss as opposed to a range of alternative lesser penalties I listened to the arguments of the Respondent that violent behaviour was a most grievous breach of all their polices that effectively only left one decision open to them. The Complainant, naturally, felt that a lesser penalty, if one had to be imposed which they strongly contested, would have been more “reasonable”. The dismissal may well have been, understandably, most upsetting to the Complainant but I had to come to the view that it fell in the “Band of Reasonableness” for an employer in a similar situation or industry. 3:6 Conclusion In the light of the above examination and careful consideration of the evidence I did not find the Dismissal unfair and the claim falls. |
4: Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Act | Complaint/Dispute Reference No. | Summary Decision /Refer to Section 3 of this Adjudication for detailed arguments. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00008594-001 | Claim is dismissed. |
Dated: 20/11/17
Workplace Relations Commission Adjudication Officer: Michael McEntee